Denis Barbosa is a Brazilian lawyer and Law Professor. He is Professor of Intellectual Property Law at the Graduate Division of the Catholic University of Rio de Janeiro, and also at a number of other graduate programs in law schools elsewhere in the country.  Professor Barbosa is a member of IP Osgoode’s international advisory council.  

In the United States utilitarian theory posits that granting an exclusive right in creative expression will provide a necessary incentive to invest in the creation and distribution of expressive works. It is feared that without this incentive there would be insufficient motivation for creation. (Lydia Pallas Loren)  

Georg Philipp Telemann went to law school in Leipzig in 1701. The piece of law that could be really important for his life could not be found there. Held as the most prolific composer in history, he was simultaneously a public servant, a publisher, a concert promoter, a conductor and a performer, rushing all time new works just to stand one step before the competition. At his time, no copyright was offered in Germany.

Telemann’s multiple jobs were not uncommon among his contemporaries. Vivaldi worked in the same fashion all over Europe, as did Handel in London, just to stick to the majors (The conspicuous lack of mention to J.S. Bach here just stresses that the Kantor of St. Thomas of Leipzig was not a market-oriented composer. Some of his tentative push sales – e.g. the Musical Offering- may be enormous artistic successes but brought meager or no investment return). Creators, performers, publishers and promoters, all at the same time, they strove to control virtually all roles of the economic process of authorship, in order to maximize return.

Obviously, our intent is not doing small time music history. Picking Telemann and his Baroque peers to discuss copyright economics seems an interesting choice, as they fared quite reasonably in a specific musical ambiance already market-driven – the opera and public concert – and where there was no exclusive rights to reckon. The following generation (The Gallant and Classical composers like J.S. Bach’s sons and Mozart) found already in their careers the momentum that would lead to the new copyright protection.

How to cope with this data? Even though not employing the full instruments of the Law & Economics approach, our goals are very much the same: the intent of this short note is to test the exclusive right dedicated to the incentive of expressive production taking social welfare as standard.

Therefore, the effective need of exclusive rights for inducing expressive production, their eventual side effects over expressive output, and which historical contexts where exclusive rights are required may be significant.

Those Baroque and Gallant composers certainly made good use of their physical control over copies (Vivaldi was reported to collect all copies from stands at the end of each reharsal) and over most of the distribution process. However, one specific characteristic of their production (not very distinct in this from their minor colleagues) seems to indicate that a further action was needed to guarantee sufficient return for expressive production, conducted on a sustainable, professional manner.

The most striking peculiarity of those market-oriented creators was their furious output. Vivaldi composed over 500 concerti, 43 operas, published 100 opi during his life. Handel staged 50 of his operas, 23 oratorios (which were pious versions of the same thing) and a great number of concerti. Telemann sprouted a Guinness record of more than 8.000 opi.

Even though other explanations could be drawn as to those quantitative records, it seems reasonable to suggest that the pursuit of lead-time in face of second comers was one of the reasons for it. In systems where there are no artificial barriers to entry (as copyright may be described), lead time is the delay needed by the copyist to start competing with the creator.

Such consumer-driven considerations certainly contributed for the high quantitative output. The lead-time issue, however, seems to have more import in the way compositors worked; after the introduction of exclusive rights, output levels generally decrease.

Beethoven 849 opi (8 concerti and 9 symphonies) may not yet reflect the new legal environment, but certainly Gershwin’s more relaxed output supposedly does: 19 classical pieces, 35 full Broadway shows and contributions for 22 other plays, 7 films. Leonard Bernstein’s 3 symphonies, 2 operas and 5 musicals, a ludicrous workload as compared to his Baroque predecessors, were however met with 9 Grammies and 2 tonies and probably the resulting income.

Gershwin and Bernstein share with the Baroque composers their Classical training and market oriented-output, as distinct from regular Broadway musicians. Other names could be suggested in their ticket, as Kurt Weill, the Austrian Hanns Eisler, and perhaps the Argentinean Astor Piazzola. For the purposes of comparison, however, we restrained our analysis on the two American composers; the other authors here mentioned have not produced in quantitative levels entirely divergent as compared with them.  

A test group of Bernstein and Gershwin contemporaries, producing roughly to the same public, might indicate that the full effect of exclusive rights in a market economy, whereas certainly provides a less demanding life from creators, at the same time deprive the society from high quality creations at the quantitative level provided by Vivaldi and his colleagues.

In non-market environments, Aram Khachaturian (a consumer-quality composer utilized on royalty-free basis by Stanley Kubrik in his 2001 film) supplied musical art with 3 ballets, 6 concerti, 3 symphonies, 23 concert and chamber music pieces, 13 films and 15 film score arrangements, in a total of total 108 opi. Sergei Prokofiev’s output comprises 138 opi, 81 of them under the Soviet mode of production, and 7 films, including the masterpieces of Alexander Nevski e Ivan the Terrible. Dmitri Shostakovich counts 147 opi in his output.

This goes against a canonic argument in favor of copyright: lack of protection should reduce the number of titles available (Plant, “The Economic Aspects of Copyright in Books,” pp. 72, 80). That´s our point.

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